People v. Coleman
| Decision Date | 26 February 2004 |
| Docket Number | 13197. |
| Citation | 4 A.D.3d 677,773 N.Y.S.2d 146,2004 NY Slip Op 01268 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EARL COLEMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered June 7, 2001, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.
CREW III, J.
On September 5, 2000, a confidential informant introduced Joseph Tokarz, an agent of the Drug Enforcement Administration, to defendant at a motel located in the Village of Liberty, Sullivan County. Tokarz asked defendant if he could get him cocaine. Defendant responded that he had to make a phone call, after which he told Tokarz it would be about 30 minutes before they could get the cocaine. Thereafter, Tokarz accompanied defendant to a residence on Chestnut Street in Liberty, gave defendant $80 and defendant went into the residence and returned with cocaine.
On September 13, 2000, Tokarz was alone in an unmarked car when he saw defendant at a gas station in Liberty. He stopped and asked if defendant could get him some cocaine. Defendant said that he could but he had to make a phone call. Thereafter, Tokarz and defendant drove to the same Chestnut Street location and defendant went into the residence and returned with cocaine, for which Tokarz paid $160.
Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree. Following a jury trial, defendant was convicted as charged and sentenced, as a persistent felony offender, to concurrent prison terms of 15 years to life. Defendant now appeals.
Defendant's contention that County Court or the District Attorney erred in failing to charge the grand jury as to the agency defense is not preserved for review in that defendant did not raise that issue in his omnibus motion seeking review of the grand jury minutes. Nevertheless, were we to consider defendant's contention, we would find it meritless. It is axiomatic that a district attorney is under no obligation to charge a grand jury as to every conceivable defense suggested by the evidence. Rather he or she must charge only those defenses that the evidence will reasonably support (see People v Ortiz, 188 AD2d 389, 390 [1992], lv denied 81 NY2d 1017 [1993]). Here, defendant did not testify before the grand jury and, accordingly, there was no evidence before that body indicating that defendant did not stand to profit from the transaction or that he acted merely as an extension of the buyer with no independent desire to promote the transaction.
Regarding defendant's contention that he was the subject of entrapment, we need note only that such defense was not raised in County Court and may not be raised for the first time...
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